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Chapter 2: The Declaration of 1943

The Declaration of 1943[1] was a curious document. It recited the Declaration of 1941[2], which the Ministers had already rejected, and stated the decision of His Majesty’s Government to give it greater precision “with the object of removing any doubts”(though there were no doubts). It then stated that the Governor had been asked to convey to the Board of Ministers the following message, the message being enclosed in quotation marks and consisting of eight numbered paragraphs. These paragraphs could be analysed as follows:–

(1) The post–war examination of the reform of the Constitution would be “directed towards the grant to Ceylon by Order–in–Council of full responsible government in all matters of internal civil administration”.

(2) and (3). Defence and external relations would be matters for His Majesty’s Government.

(4) The Governor would be given legislative power for (2) and (3) and would reserve local Bills on (2) and (3).

(5) The Governor would also reserve Bills of three other classes

(6) Ceylon could make trade agreements within the British Commonwealth with the consent of His Majesty’s Government.

(7) The Constitution could not be drafted during the war but, once victory was achieved, His Majesty’s Government would examine by a suitable commission or conference any proposals which the Ministers might in the meantime have been able to formulate in the way of a complete constitutional scheme: subject to the clear understanding that acceptance by His Majesty’s Government would depend, first, on His Majesty’s Government being satisfied that the proposals complied with paragraphs (1) to (6); and secondly upon their subsequent approval by three–quarters of all the members of the State Council excluding the Officers of State and the Speaker.

(8) His Majesty’s Government appreciated Ceylon’s contribution to the war effort.

The procedure seemed clear enough, and so far as is known there was no argument about it at all. The Ministers would draft a constitutional scheme which provided for full responsible government in internal matters and which complied with paragraphs (2) to (6). There would then be a commission or conference to examine these proposals to see if they so conformed. The scheme as approved was then to be put to the State Council and would be accepted by His Majesty’s Government if at least 43 members voted for it.

Discussions on this procedure were limited to the problem of so drafting as to get 43 votes. There were 39 Sinhalese members of varying shades of political opinion and it would not be easy to produce a draft which satisfied them all. Nobody intended to produce a communal Constitution, but any attempt to meet minority opinion would tend to lose some Sinhalese votes. Also, some would probably vote against because of the limitations in paragraphs (2) to (6). It would thus be necessary to produce a draft which gave reasonable satisfaction to all sections but did not meet the views of extremists on either side. It seemed to be a clever scheme to overcome the communal problem which was attributed to Sir Andrew Caldecott and Sir Robert Drayton. They had evidently realised that to require the majority and the minorities to agree would be to enable any minority to refuse to collaborate unless it got exactly what it wanted. A three–quarters majority, on the other hand, required only that the scheme be a reasonable compromise of opposing these. Mr Senanayake thought it could be done but was anxious to safeguard the position if he failed, perhaps by a few votes.

There was never any suggestion that the “commission or conference” was to be another Donoughmore Commission, taking evidence from communal and other organisations. If the idea had occurred to us we should have rejected it as inconsistent with the Declaration itself. Obviously the Ministers could not be expected to get a three–quarters majority for a scheme which was produced by a commission, and it was clear that what was to be put to the State Council after examination by the commission or conference was the Ministers’ scheme.

The difficulties of interpretation were not in paragraph (7) of the Declaration but in paragraphs (1) to (6). It seemed to me that the United Kingdom was proposing something like the “Dominion status” of 1900[3] or the status of Newfoundland before 1933[4]. Mr Senanayake was more doubtful, and he was strengthened in his doubts by his consultations with D. R. Wijewardene and others derived out of the distrust of British policy and the propaganda led by the leaders of the Indian National Congress suggesting that Britain’s objective was “imperialist exploitation”. Britain became wealthy, it was argued, through “exploiting” Ceylon and other politically backward countries. Clearly her leaders would not give up without a struggle the sources of their country’s wealth.

There must be something in the Declaration to preserve Britain’s economic control. Paragraph (6) showed that external relations in paragraph (3) included trade relations. The reference to trade and shipping in Paragraph (5) showed that Ceylon legislation on these subjects would be subject to Imperial control.

There was indeed an influential section of opinion, usually known as the “freedom group”, which favoured the rejection of the offer as quite inadequate. It is not easy to describe because its ideas seemed inconsistent. It was profoundly influenced by the attitude of the Indian National Congress: but whereas the Congress proposed to obtain “freedom” by revolutionary, though non–violent, measures, Ceylon’s “freedom group” seemed to think that it could be obtained by constant nagging. The Indian politicians could afford to refuse all offers and to continue the struggle until they got what they wanted – though ultimately what they did accept was a truncated India. The Ceylonese politicians of “the freedom group” were merely talking and passing resolutions, and there was no evidence that this presence would produce more rapid results than that of taking what was offered, if it was an improvement, and then asking for more. It was apparently not suggested that the State Council should withdraw from the executive committees[5] and so cause the Donoughmore Constitution to break down. Nor would such a measure have been effective, for the Commander–in–Chief had full powers under his Directive to take over the civil government of the Island. It is therefore surprising that this group was so strong; nevertheless it was strong in numbers. Had Mr Senanayake supported this group, the Declaration would have been repudiated and the subsequent history would have been quite different. He was already inclined to acceptance and our discussions in the Civil Defence Department convinced him that, if our interpretation was correct, he could carry the State Council with him. The Declaration was issued on the 26th May 1943. I provided Mr Senanayake with a comprehensive memorandum on the 28th. On the 30th of May we met in Sir Oliver Goonetilleke’s room and Mr Senanayake said that he proposed to go ahead. It was, he said, a matter of urgency, for it was necessary for him to persuade the Ministers before opinion had crystallized against the Declaration. He asked for a less technical memorandum which could be circulated to the Board and I completed this memorandum in time to read it to Mr Senanayake and Sir Oliver Goonetilleke in the former’s bungalow that evening, and it was agreed with slight amendments.

At this point the Civil Defence Commissioner pointed out that there was one danger. Mr Senanayake was proposing to advise the Board of Ministers to accept the offer made by the Government of the United Kingdom; but the Chief Secretary would preside over the Board and would have his own views about the meaning of the document, which probably he had himself drafted. If Sir Robert Drayton differed from Mr Senanayake on any point the Board would clearly refuse to accept the Declaration as it stood. Mr Senanayake was now on the side of “the Governor’s Government”. It was therefore necessary to make certain that the Governor’s Government agreed with him. Mr Senanayake thereupon made an appointment with the Chief Secretary, and at 8.45 p.m. the three of us called on Sir Robert Drayton in his bungalow, where Mr Senanayake handed over the memorandum. Sir Robert read it in silence and then asked Mr Senanayake what he wanted him to do about it. Mr Senanayake replied that he hoped the Chief Secretary could say whether there was anything in it that was not a fair interpretation. Sir Robert answered that it was “quite fair”, and the conversation then proceeded to the question of the procedure in the Board of Ministers.

The memorandum was circulated to the Board on the 31st May. It interpreted paragraph (7) of the Declaration in the following manner:

“(a) If the Ministers draft a scheme of responsible government which satisfies paragraphs (2) to (6) (of the Declaration), that scheme will be accepted by a commission or conference.

(b) The commission or conference will meet immediately after the termination of hostilities.

(c) The scheme will be put into operation by Order–in–Council if it is accepted by three–quarters of all the members of the State Council excluding the Officers of State and the Speaker”.

It will be seen that there was no ambiguity about the procedure and that a Commission like the Donoughmore Commission was ruled out.

Though there was no controversy over the procedure, that procedure was very relevant to the decision to accept the Declaration. The “freedom group” distrusted the intentions of the Government of the United Kingdom but considered that, if the Ministers were to draft the Constitution, there could be no harm in accepting. They would not put forward a draft which gave less self–government than the Donoughmore Constitution and at least it was worthwhile to try to find out whether the Declaration meant what it was said by Mr Senanayake to mean; in other words, it was a bluff, it was wise to call it. It seems probable that the Declaration would have been repudiated if there had been any notion of a second Donoughmore Commission.

It must be emphasized, too, that the memorandum passed lightly over the procedure because none of us thought that there was any doubt about it. Our task, as we saw it, was to explain what was meant by the conditions (2) to (6), to balance the restrictions which would disappear against the restrictions which would remain. It contained ten long paragraphs of which only the first dealt with procedure. Special attention was paid to Defence and External Affairs. It was clarified that these functions were not taken away from the State Council but that over–riding powers were vested in the Governor and the Secretary of State. It ended with the following paragraph:–

The above considerations suggest that the Declaration provides for a system very different from that now in operation. That system will not be a step[6] towards self–government, but self–government itself, subject only to qualifications already indicated “by me[7]. The proposal does not provide for Dominion Status, but that term has a meaning varying from that of Eire to that of Newfoundland. The status of Ceylon will not be very different from that of Newfoundland in 1933. Nor will it be very different from that of any other of the Dominions before 1914”.[8]

The memorandum, supported by the personal advocacy of Mr Senanayake, whose interpretation was naturally not denied by the Chief Secretary, proved convincing, and the Board of Ministers decided that Mr Senanayake should make a statement to the State Council accepting the offer on behalf of the Board. This statement would set out the interpretation which the Board gave to the Declaration and would be telegraphed to London.

This decision was taken on May 31. On the following day I completed a first draft of the Ministers’ statement. It was discussed with Senanayake and Sir Oliver Goonetilleke on the 2nd June. It was heavily amended partly by me and partly as a result of the discussion. On 3rd June a second draft was ready. It was accepted after further discussion and shown to Sir Robert Drayton, who again offered no criticisms. Some verbal amendments were then made and a third draft was circulated to the Board on the 6th June.

All the drafts dealt with the procedure in precisely the same manner, the appropriate paragraphs being as follows:–

“It is in essence an undertaking that if the Board can produce a Constitution which, in the opinion of a Commission or Conference, satisfies the conditions set out in paragraphs (2) to (6) thereof and if that Constitution is subsequently accepted by three–quarters of all the Members of the State Council excluding the Officers of State and the Speaker, His Majesty in Council will put that Constitution into operation”

“It is important, too, that we should be able to draft our own Constitution and not be compelled to accept a Constitution thrust upon us by some Commission sent from overseas”

“We propose to draft a Constitution and, after His Majesty’s Government have satisfied themselves that it lies within the four corners of the Declaration, to submit it to the State Council…..”

The only one of these paragraphs amended by the Board of Ministers was the third, which was expanded. Since Sir Robert Drayton presided over the Board, Sir Barclay Nihill[9] the Legal Secretary was present, and the Governor read both the draft as submitted to the Board and the statement as approved by the Board, it is clear that there was no dispute in Ceylon about the procedure which was to be followed. What is more, Sir Robert took a hand in the drafting of other paragraphs.

The third draft, that circulated to the Board of Ministers, had been shown by Mr Senanayake to Mr D. R. Wijewardene, who called Mr L. M. D. de Silva[10] into consultation. They discussed it for most of the morning of the 6th June, and Mr de Silva then telephoned Sir Oliver Goonetilleke to say that Mr Wijewardene and he could not agree with the draft as it stood. I was called to the Civil Defence Commissioner’s Office and Sir Oliver suggested that the four of us should meet to thrash out the difference. Sir Oliver telephoned the suggestion to Mr de Silva, who replied, after some delay, that Mr Wijewardene was going to lunch and could not see us. Later in the day, however, Sir Oliver found out what was wrong. Mr Wijewardene did not accept the interpretation about trade agreements, and he also wanted the Board of Ministers to say positively that they would not proceed with the arrangement unless their interpretation was accepted. There were a few other minor points, but these could be met by omitting certain phrases. I sat down there and then and drafted paragraphs to meet Mr de Silva’s views. The new paragraph about trade agreements I did not like because it seemed to me to stretch the Declaration too far: in other words, it was not an interpretation but a counter–offer. Still, it was absolutely essential that Mr Senanayake should have the support of the Ceylon Daily News[11], for the opposition to acceptance was strong and if it was supported by the press rejection was certain. Mr Senanayake saw Mr Wijewardene and, as we discovered later, pledged himself not to carry on if the interpretation given by the Board was not accepted by the Secretary of State. Sir Oliver Goonetilleke took my draft paragraphs to Sir Robert Drayton, who at once raised objections about trade agreements and himself drafted a paragraph which was, in his opinion, less obnoxious.

Mr Senanayake took to the Board of Ministers the following day (7th June) the drafts of the amendments so prepared. In the published statement they appear in the middle of paragraph 5 and as paragraph 10. The Board met at 9 a.m. and sat until 1 p.m. They met again at 3 p.m. and sat until 7 p.m. Some Ministers began with the assertion that the document was quite unsatisfactory and must be scrapped, but in the end they accepted the draft with the addition of a few phrases and the deletion of a few others. At 8 p.m. Sir Oliver Goonetilleke telephoned me to say that there was a revised draft which Sir Robert Drayton wished me to see. He – Drayton – had “tried to keep the drafting straight”, but it was necessary that I should examine it carefully. Accordingly Sir Oliver and I met Mr Senanayake in his bungalow. I thought that the document had been weakened as an instrument of propaganda both in Great Britain and in Ceylon. The Board, I considered, was so anxious to stake a claim that it was forgetting that it had to persuade. However, there was nothing objectionable in it and I advised Mr Senanayake to accept.

The Board of Ministers met again at 9.30 p.m. and sat until 11.30 p.m. Again there was objection, but eventually the draft was agreed. The chief change was the insertion of paragraph 7. The Statement was read to the State Council on the afternoon of the 8th June and was favourably received by the press and the nationalist movement, which was indeed surprised that so much could be read into the Declaration. On reading it again after four and a half years I would say of it what the Chief Secretary said of my second draft, that it was a “fair interpretation”. I could have drafted a better paragraph 7, but the paragraph as drafted served its purpose.

There is no doubt that this was the most difficult passage in the history of the negotiation. Henceforth the Ministers and at least the majority of the opinion were solidly behind Mr Senanayake. There were differences over minor points but nothing requiring long meetings of the Ministers. The Declaration of May 26 was badly drafted because it did not say simply and plainly what was intended. Ceylonese opinion was suspicious of anything that came from Whitehall, and the suspicion could be overcome only by taking care that all promises were carefully and simply drafted and then carried out both in the letter and the spirit. It is however necessary to remember that such documents followed a complicated procedure. They were, usually, drafted in Ceylon by the Governor on the advice of the Chief Secretary and the Legal Secretary. They were then cabled to London and discussed in the Colonial Office. Suggestions for amendment would be made by several officers and an amended version prepared for the Secretary of State: when approved by him they would go to a Cabinet Committee and perhaps be again amended. In the interval there might be further communications with Ceylon with suggestions for amendment passing to and fro. In the result a simple statement might become complicated.

We assumed that Sir Andrew Caldecott and Sir Robert Drayton had initiated this movement to satisfy Ceylon’s aspirations at least for the time being. They knew how necessary it was that the Ministers should work with the Government of the United Kingdom, for Ceylon was clearly to be one of the bases, if not the main base, for the attack on Malaya. Though Sir Robert was most circumspect, I thought that I knew the general nature of his views, and I agreed with them. Sir Oliver Goonetilleke was in close touch with Sir Geoffrey Layton[12], the Commander–in–Chief, and had reason to believe that he also was in agreement and was indeed supporting Sir Andrew Caldecott’s representations. Mr Senanayake was more suspicious, and in any event his was the most difficult task. I can honestly say, however, that with the exception of paragraph 7, we thought the Ministers’ interpretation to be a correct interpretation, though carefully dressed up to appeal to Ceylonese opinion.

Even so, it was touch and go. Had Mr Senanayake hesitated the offer in the Declaration would not have been accepted, there might have been strenuous agitation in Ceylon, and in all probability the conferment of Dominion status would have been long delayed. At this stage, however, even his authority was weak, while the suspicions were strong. Sir Robert Drayton’s support was the deciding factor, and it was a stroke of genius on Sir Oliver Goonetilleke’s part to bring him in. That support enabled Mr Senanayake to persuade the Ministers and to overcome the doubts of Mr D. R. Wijewardene.

It is necessary to repeat that there was never the slightest controversy over the procedure. On this point my second draft stood unaltered, except for the addition of paragraph 10, which was a compromise intended to meet Mr Wijewardene’s views without threatening the Secretary of State. It will be seen that Sir Robert Drayton accepted the statement about procedure without criticism, that he was quick enough to object to the revised draft about trade agreements, and that he took part in the drafting in the Board of Ministers. It astonished us later on that it was on the question of procedure, and on that point alone, that controversy developed.

Meanwhile an unexpected obstacle arose. On the 12th June a reply came from the Secretary of State. This reply was drafted by Sir Andrew Caldecott and Sir Robert Drayton and was intended to be innocuous[13]. It was not an acceptance of the Ministers’ interpretation but stated that the Secretary of State had read the document with “great interest” and that the Ministers would not expect him to make any comment on their interpretation at this stage. This document was shown to Mr S. W. R. D. Bandaranaike, who had called at Queen’s House[14] on other business, on the morning of the 13th. Mr Senanayake also called later in the day and was not shown the document. Mr Bandaranaike informed Mr Senanayake that it was a rejection, and when the latter saw it he read it in the same sense. It would not be an exaggeration to say that he was furious. He had been careful to consult the Chief Secretary, who had helped to draft the Ministers’ interpretation. He had overcome opposition in the Board of Ministers and outside and, relying on the advice which we had given and which the Chief of Secretary had not repudiated, he had pledged his political reputation. What is more (though none of us knew this) he had agreed with Mr Wijewardene that he would not continue unless his interpretation was accepted. He sent a strongly worded note to the Governor which was of course not drafted by me nor seen by Sir Oliver, and this note in turn angered Sir Andrew Caldecott.

I gave a very different interpretation of the reply from the Secretary of State. I had never expected a formal acceptance. The Declaration of May 26 was a Cabinet document which the Secretary of State had no power to interpret. If he knew definitely that the Ministers’ interpretation was incorrect he would no doubt say so; but he could not accept that interpretation without going to the Cabinet again. It was enough for Ceylon that Drayton had not disapproved and that the Secretary of State had raised no objections. We could proceed to draft constitutional proposals and argue the precise limits of the Declaration at the “commission or conference” to which the Declaration referred. Had the reply been sent to Mr Senanayake in the usual way I should no doubt have seen it and explained the constitutional position to him.

Instead, it was merely shown to leader of the “suspicious” group and, for once,Mr Bandaranaike’s quick and incisive mind had let him down and he assented to the Ministers’ statement with some doubts because he, more than other Ministers, suspected British intentions. Giving his own interpretation of the colourless reply, he had been able to say in effect, “I told you so”. The fact that Mr Senanayake was not shown the document suggested, to suspicious mind, that Sir Andrew Caldecott had intended the reply to be taken as a polite rejection. In other words, Mr Senanayake had been led up the garden path.

I did not see Mr Senanayake during the following week and it was clear that I was included in the group of untrustworthy Europeans. Sir Robert Drayton’s position was difficult, for we knew that he had drafted the reply, and he was in effect being accused of rank duplicity. I decided not to see him, but it was easy for me to meet Sir Barclay Nihill the Legal Secretary casually. I did my best to explain why there was so much fuss and I informed Sir Oliver of Nihill’s explanations, which entirely accorded with my own assumptions. Goonetilleke was able to calm the storm somewhat. On the 21st June the Ministers sent a formal protest and on the 28th they had a conference with the Governor. On the 6th July they sent a message declining to draft a Constitution without an indication that their statement was in accord with the Declaration.[15] Eventually, the problem was solved by a very woolly reply from the Secretary of State stating that he could find nothing “essentially irreconcilable” with the Declaration in the Ministers’ interpretation[16].

The problem would never have arisen if Mr Senanayake would have had five minutes’ conversation with the Secretary of State. The latter could have explained somewhat on these lines:–

This Declaration is a Cabinet document and I cannot tell you precisely what it means because I do not know, and in any case I cannot pledge the Cabinet. All I can say, off the record, is that I see nothing objectionable in your reply. I suggest that you draft your constitutional proposals and we can then discuss later what are to be the precise limits of your powers. I can assure you that it is our intention to give the widest possible powers to Ceylon, retaining in our own hands only those powers which we feel to be absolutely necessary: but we can argue that question in detail when you submit your proposals.

That, I believe, was the intention of the Colonial Office: but business was not done in that way under the colonial system. Mr Senanayake had never met Colonel Oliver Stanley[17]: for him the Colonial Secretary was not a person but an institution usually known as “H. M. G.” or more popularly “British Imperialism”. In the popular view the Colonial Office was a gang of thugs, clever thugs no doubt, thugs who used soft words and hidden weapons when convenient, but still thugs. In July 1945 he met Colonel Stanley, and the two men liked each other immediately. He also met Mr Hall and Mr Creech Jones[18], Colonel Stanley’s successors, and for the first time the whole Colonial Office understood who Mr Senanayake was and what he stood for. Henceforth the negotiations were conducted not by formal declarations through the Governor, but by personal telegrams addressed to “Creech Jones” and “Senanayake”. The whole spirit was altered. Nor was it possible under the colonial system for the Governor to take the place of the Secretary of State. He could forward Mr Senanayake’s views or Colonel Stanley’s views, but he was neither authorised nor sufficiently informed to give adequate explanations off the record. He could say that he thought Mr Senanayake misunderstood the position, but inevitably he had to admit that Mr Senanayake must draw his own conclusions from the documents.

[2] Declaration of 1941 (Correspondence of the Board of Ministers with the Secretary of State and the Governor, S.P. XIII of 1943, Document 10A).

[3] Jennings is perhaps referring to how Dominions operated before the passing of the Statute of Westminster Act 1931 when Dominions acted almost entirely independently save for major subjects such as defence, indigenous affairs, imperial trade and diplomatic policy where the Imperial parliament retained powers in these areas and others to legislate on behalf of the territories.

[4] Following the collapse of Newfoundland’s economy and civil unrest following the “Great Depression” a Commission was setup in 1933 and requested Britain to intervene, which then effectively suspended self–government. This led the way to the end Newfoundland’s separate status and the eventual inclusion into the Canadian Federation in 1949.

[10] L. M. D. de Silva, leading Ceylonese legal personality who held key public and private positions. De Silva was a key adviser to Senanayake on legal matters.

[11] An important English language Lake House run newspaper of D.R. Wijewardene’s.

[12] Admiral Sir Geoffrey Layton, Commander–in–Chief of Ceylon, 1942–45. During wartime Layton exercised key responsibilities and rivalled, during this period, the Governor in terms of power and influence.

[13] IJ notes “One paragraph drafted by Sir Robert was, however, left out by the Secretary of State.”

[14] The official Colombo residence of the Governor (and, after independence, Governor–General) of Ceylon.